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Pullen v. South Plainfield Planning Bd.

January 24, 1995


Wolfson, J.s.c.

The opinion of the court was delivered by: Wolfson


This is an action in lieu of Prerogative Writs brought by Henry Pullen, an objector, against the South Plainfield Planning Board (the Planning Board) and Henry Feinberg, t/a Rite-Aid Pharmacy & Store (Feinberg or applicant). Pullen seeks to overturn the Planning Board's approval of an application seeking preliminary and final site plan and subdivision approval. The novel issue raised in this case is essentially one of statutory construction; that is, whether the planning board's power to grant variances under N.J.S.A. 40:55D-70c(2) (referred to as a "flexible 'c'" variance *fn1) extends to circumstances where the benefits to be obtained by permitting the deviation flow not from the specific deviation itself, but rather from the general development of the site as proposed by the applicant.

I. Factual Background

Mr. Feinberg is the contract purchaser of a proposed "T" shaped lot to be created from two existing lots, one being 300' x 100' and fronting on Holly Avenue, the other being 175' x 100' and fronting on Park Avenue. Feinberg proposes to utilize a 100' x 100' parcel from the second lot to create a new lot, leaving a 100' x 200' portion of the second lot fronting on Holly Avenue. The property is located in the OBC-1 zone, the local business zone, which permits retail uses such as the proposed Rite-Aid Pharmacy. The property, the site of a former used car lot, is vacant and partially paved with no other improvements.

The Board met to consider Feinberg's application on September 14, 1993, September 28, 1993 and October 26, 1993 when it adopted its original resolution. Pursuant to the consent order dated March 24, 1994, the Board met again on April 12, 1994 and adopted an Amended Resolution. During the initial three meetings, Feinberg and the objector presented to the Board expert testimony in support of and against the variances and waivers being sought. In order to accommodate the concerns raised by the Board, the objector and the general public during the hearings, Feinberg made several major revisions to the site plan.

At the meeting on October 26, 1993, following a substantial reduction of the building size, intended to diminish the impact of the requested variances on the neighboring properties, the Board granted preliminary and final site plan approval along with the requested ancillary variances and site design waivers. *fn2

Although plaintiff challenges the sufficiency of the amended resolution, his central objection relates to the Board's approval of a 20' set back on Holly Avenue. *fn3

The October 26, 1993 resolution concluded that "the Holly Avenue frontage of the property [is] to be considered a rear yard requiring only a 20' setback." However, to the extent that a variance was deemed required from a front yard, then it was "granted to 20'."

The applicant had argued before the Board that because a deed restriction precluded ingress or egress from Holly Avenue to the property, the Holly Avenue frontage should be deemed a "rear yard", requiring only a 20' setback. The Board apparently accepted this argument. However, given the interpretive powers vested with the Zoning Board of Adjustment under N.J.S.A. 40:55D-70b, this court suggested that the question of interpretation be submitted to the South Plainfield Zoning Board of Adjustment. *fn4

On July 19, 1994 the Zoning Board held a hearing on this issue, after which three Board members concluded that the Holly Avenue side of the property was a rear yard, while three others determined that same portion to be a front yard. *fn5 Consequently, this Court is called upon to determine the effect, if any, of the tie vote in conjunction with the merits of the litigation against the Planning Board.

II. The Tie Vote of the Zoning Board

N.J.S.A. 40:55D-9(a) provides in part that "failure of a motion to receive the number of votes required to approve an application for development shall be deemed an action denying the application." However, an application for development, as defined by the Municipal Land Use Law, (N.J.S.A. 40:55D-3) is limited to "the application form and all accompanying documents required by ordinance for approval of a subdivision plat, site plan, planned development, conditional use, zoning variance or direction of the issuance of a permit pursuant to [N.J.S.A. 40:55D-34] or [N.J.S.A. 40:55D-36]."

A request under N.J.S.A. 40:55D-70(b) for an interpretation of a zoning ordinance plainly falls outside the scope of an "application for development." See, Ientile, Inc. v. Zoning Bd. of Adj., 271 N.J. Super. 326, 332, 638 A.2d 882 (App. Div. 1994)(Skillman, J.A.D., Concurring). As explained by Judge Skillman in his Concurring opinion in Ientile, supra, "there are practical reasons for 'deeming' a tie vote on an application for development to be a denial which are not applicable to a request for an interpretation of a zoning ordinance." Id., at 332, 333. Boards of adjustment and planning boards have exclusive authority to grant specific applications for development. N.J.S.A. 40:55D-20. A party may ...

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